Do State Lines Make Public Health Emergencies Worse? Federal versus State Control of Quarantine

Price, Polly J., Emory Law Journal

INTRODUCTION

The 2017 Thrower Symposium provided an early opportunity to discuss the federal Centers for Disease Control and Prevention's (CDC) new quarantine regulations.1 In this Symposium issue, James Misrahi recounts the history of these regulations in his article The CDC's Communicable Disease Regulations: Striking the Balance Between Public Health & Individual Rights, and responds to criticisms by some scholars concerning civil rights protections.2 Although this Article also addresses the new federal quarantine regulations, the aim is different. This Article considers the concept of interstate quarantine, an aspect of the federal government's authority that remains perplexing, and is seldom considered by scholars.3 This is the authority of the federal government to act within the United States, not its well-settled authority to quarantine travelers arriving at a U.S. point of entry.

Following Severe Acute Respiratory Syndrome (SARS) and Ebola, scholars have addressed questions surrounding the legal basis for quarantine, including ethical responsibilities and preparedness.4 Headlines from the recent Ebola crisis and the specter of pandemic disease arriving in the United States from elsewhere in the world inevitably have focused public attention on quarantine at U.S. borders, particularly the role of the CDC to interdict contagious disease before it can enter the territorial United States.5 But this focus on border control masks concern for epidemic outbreaks within the United States, at least with respect to the federal government's quarantine authority. Unlike the Ebola outbreak, in which the U.S. border was the primary focus, this Article concerns federal government authority when a contagious disease already present in the United States threatens to reach epidemic level. The United States is dangerously handicapped and unprepared to effectively control transmission from state to state, especially when individual states take actions that benefit it but harm their neighbors.

As this Article will explain, state and local governments lack sufficient incentives to cooperate effectively with each other to stem a public health emergency of potentially wide geographic scope. These separate public health authorities, in fact, may face the opposite incentive. State lines demarking political units present challenges in the face of a potential national epidemic. Much is made of the need for local preparedness, including resource planning, simulations, and drills, but little has been done on a regional or multi-state basis.6

Moreover, even if incentives not to cooperate with adjacent governments can be overcome, individual states lack the administrative and enforcement tools necessary to effectively contain the spread of disease from one state to another. This is one aspect of the problem of fragmentation of the public health system in the United States that I have identified elsewhere.7

My purpose is to shiftthe debate about the federal government's quarantine authority from its focus on international borders to the interior, and to point out the dangers of protectionism when state and local governments attempt to exclude outside threats from local communities. Our longstanding view of a restricted federal interstate quarantine authority reflects an unnecessarily restrained view of what Congress has authorized. The CDC believes it is more constrained by underlying principles of federalism than it in fact is.

I view the new federal quarantine regulations as a missed opportunity to clarify the meaning of "interstate quarantine" both as a matter of jurisdiction and practical application, recognizing that to do so was almost certainly deemed politically inexpedient, and would have hampered the acceptability of these much-needed updates to federal quarantine rules. But such discussion is not foreclosed for the future. Congress has provided ample room for the exercise of interstate quarantine authority, sufficient even to nullify a stateordered quarantine. …

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